This week’s Alabama Law Weekly Update discusses two decisions recently entered by Alabama appellate courts. In the first case, the Supreme Court of Alabama analyzed the legal effect of certain forum selection clauses present in a set of agreements related to an asset sale of a software business. In the second case, the Alabama Court of Civil Appeals considered the propriety of a trial court’s instructions to a jury regarding an award for permanent damages when no objective evidence of those damages was presented at trial.

Ex Parte B2K Systems, LLC, No. 1130742, 2014 WL 4493630 (Ala. September 12, 2014) (holding that forum selections clauses present in agreements related to asset sale of software business were permissive rather than mandatory)

The Alabama Supreme Court’s decision in Ex Parte B2K Systems, LLC, arose out of an asset sale gone wrong. B2K Systems, LLC (“B2K”) is an entity created specifically to house and facilitate the purchase of the assets of B2K Systems, Inc., a Birmingham-based software development company. The collective agreements which were intended to effectuate the asset sale included four separate outbound forum selection clauses, all of which designated the State of Michigan as the appropriate forum for any disputes. The Jefferson County Circuit Court refused to enforce the forum selection clauses, holding that the forum selection clauses were unclear, thus rendering them permissive as opposed to mandatory. B2K, Ingenuity International, LLC, Robert A. Przybysz (the “petitioners”) petitioned the Supreme Court for a writ of mandamus regarding the trial court’s decision.

At the outset of its analysis, the Supreme Court recognized the propriety of its review of the trial court’s decision via a mandamus petition. However, despite that propriety, the Supreme Court upheld the trial court’s ruling. The Supreme Court looked at the four forum selection clauses as well and asked whether they were mandatory or permissive. The Court concluded that all of the agreements had to be read together, but it determined that the conclusion was ambiguous because “two of the provisions appear to be ‘exclusive,’ while the other two are ‘permissive.’” With that being the case, the Court looked to the petitioners for guidance since they carry the burden in seeking a mandamus order. The petitioners provided no “viable argument or citation of authority” to the Court regarding the proper standards for interpreting the forum selection clauses at issue. That failure dictated the result that the petitioners failed to establish a clear legal right to the relief sought. Thus, the Court upheld the trial court’s decision.

Cajun Operating Company v. Arthur Elijah, No. 2121028, 2014 WL 4494147 (Ala. Civ. App. September 12, 2014) (holding that jury charge on damages for permanent injury is improper when allegation is not supported by objective medical evidence)

In Cajun Operating Company v. Arthur Elijah, the Alabama Court of Civil Appeals considered the following set of facts. The appellee, Arthur Elijah, was injured while eating at a Church’s Chicken restaurant operated by the appellant Cajun Operating Company (“COC”). The injury was the end-product of a heated exchange between a COC employee and Elijah, which culminated in the employee throwing a metal straw container at Elijah. The container struck Elijah in the eye, requiring a hospital visit.

Elijah sued the COC in Jefferson County District Court seeking damages for assault and battery based on the employee’s conduct. After the District Court entered judgment in favor of Elijah, the COC sought a trail de novo in the Jefferson County Circuit Court. At trial, Elijah insisted that he suffered permanent damages related to the incident; however, Elijah presented no medical records or testimony from medical professional to support that allegation. Following the close of evidence, the Court instructed the jury to determine whether Elijah had been permanently harmed, and, if so, to award damages for that permanent harm. The COC timely objected to that charge. A general verdict was entered in favor of Elijah in the amount of $17,500.

The issue on appeal concerned the propriety of the Circuit Court’s jury instruction regarding permanent damages. The Court of Appeals held that the jury instruction was improper based on Elijah’s failure to present any objective medical evidence regarding his alleged permanent injury. The Court of Appeals specifically found that “[t]he jury was permitted to find that Elijah suffered eye problems based on his testimony; however … ‘expert medical testimony was required to prove whether the injury was permanent.’”